Barrios v Wide Hold Pty Ltd
[2012] VCC 1478
•12 October 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-01533
| JOHN ALEX BARRIOS | Plaintiff |
| v | |
| WIDE HOLD PTY LTD | First Defendant |
| and | |
| QBE WORKERS COMPENSATION (VIC) LTD | Second Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE SHELTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25 and 26 September 2012 | |
DATE OF JUDGMENT: | 12 October 2012 | |
CASE MAY BE CITED AS: | Barrios v Wide Hold Pty Ltd & Ors | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1478 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury application – are the pain and suffering and the loss of earning capacity consequences “more than significant or marked and at least very considerable” – effect of later injury to a separate body function
LEGISLATION CITED – Accident Compensation Act 1985, s134AB
CASES CITED – Acir v Frosster Pty Ltd [2009] VSC 454; Jones v Dunkel (1959) 101 CLR 298; O‘Donnell v Reichard [1975] VR 916; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
JUDGMENT – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P A Jewell SC with Mr R B Harper | Rennick Briggs |
| For the Defendants | Mr P G A Montgomery | Minter Ellison |
HIS HONOUR:
Introduction
1 This is an application by way of Originating Motion seeking leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings for the recovery of damages in respect of a fractured left wrist suffered by the plaintiff in the course of his employment with the first defendant on 9 April 2008 (“the injury”). On that day, the plaintiff fell from a truck upon which he was working and landed heavily on his left wrist (“the accident”).
2 Section 134AB(19)(a) of the Act provides that I must not give leave to bring the proceedings unless satisfied on the balance of probabilities that the injury suffered was a “serious injury”.
3 Section 134AB(37) of the Act, so far as relevant, defines “serious injury” as follows:
“serious injury means –
(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon by the plaintiff is best described as the lower aspect of the left upper limb.
5 The plaintiff seeks leave to bring proceedings in relation to consequences with respect to both pain and suffering and loss of earning capacity.
6 Section 134AB(38)(j) of the Act requires me to assess whether, at the present time, the plaintiff has a serious injury.
The Issues
7 It is not in issue that the accident occurred. What is in issue is whether each of the pain and suffering consequence and the loss of earning capacity consequence is “when judged by comparison with other cases in the range of possible impairments … of a body function … fairly described as being more than significant or marked and as being at least very considerable” – s134AB(38)(c) of the Act. The matter is complicated by a lower back injury suffered by the plaintiff on 28 October 2010 (“the back injury”).
The Plaintiff’s Evidence
8 The plaintiff relied upon two affidavits sworn by him on 30 August 2010 (“the first affidavit”) and 24 August 2012 (“the second affidavit”). He also gave viva voce evidence, being the only witness to do so, and was cross-examined.
9 The plaintiff is presently aged thirty-two and at the time of the accident was aged twenty-eight. He left school after Year 8 at age fifteen. He then worked for the next ten years in various manual labouring jobs. He also operated his own courier business for a time and installed car audio systems, both as an employee and in his own business. He commenced full-time employment with the first defendant in September 2007. The first defendant’s business was the onsite repair of truck curtains.
10 On the day following the accident, the plaintiff attended Dandenong Hospital and on 18 April 2008, had surgery to his left wrist performed by Mr Jason Harvey, an orthopaedic surgeon specialising in hand and wrist procedures. He then underwent hand therapy with Resolve Hand Therapy Specialists. On 13 January 2009, Mr Harvey removed “the metalware” from the left wrist.
11 In his first affidavit, the plaintiff listed the disabilities from which he suffered as follows:
“(a)pain, weakness and stiffness in the left hand and wrist;
(b) pain in the left elbow and shoulder;
(c) pulsating headaches, especially when lying on my left side;
(d) reduced grip strength in my left hand;
(e) I have difficulty carrying heavy items such as saucepans or shopping bags, in my left hand; if I am holding anything in my left hand for longer than a short period of time I get a cramping sensation in my ring and little fingers followed by pins and needles;
(f) I have difficulty walking my dog;
(g) I have difficulty using or cannot use tools such as spanners and ratchets which require twisting my wrist and applying pressure;
I must constantly rotate my left wrist to prevent pain and stiffness.
My left wrist/hand is affected by the cold weather and is very much sensitive to cold air eg. car ventilation.”
12 In his second affidavit, the plaintiff states that as a result of the accident, he was also suffering pain and discomfort in his upper back and cervical spine region.
13 In February 2009, the plaintiff was certified as fit to return to normal duties. He stated however that the first defendant was unable to find satisfactory work for him and that he had difficulty obtaining suitable employment.
14 In January 2010, he moved to Perth. He worked there as a driver for WA Limestone for about two-and-a-half months and then for Linfox. He used to also work on a Saturday for about six hours for Tip Top Bakeries. He stated that when he drove a truck in these occupations he normally had his left wrist resting on his hip. He returned to Melbourne in May 2010 and worked as a scaffolder for approximately one-and-a-half months. On 5 September 2012, he told Mr Damian Ireland, hand surgeon, that he had worked as a scaffolder for approximately two months. Under cross-examination, he tended to downplay the physical aspect of this work.[1] He has not worked since September 2010.
[1]Transcript 49
15 The plaintiff has a substantial criminal record, having between November 1997 and June 2010 been convicted of sixty nine offences, including many driving offences, fraudulent use of numberplates on five occasions, theft of a motor vehicle, going equipped to steal, shop stealing, handling stolen goods, unlawful imprisonment and assault. He had numerous Magistrates’ Court appearances and was once in this Court on appeal. He has served three three-month periods of imprisonment. In July 2010, he received a twelve-month intensive correction order. While shovelling mulch on 28 October 2010 in the course of performing unpaid community work under this intensive correction order, he suffered the back injury.
16 The plaintiff states that prior to the accident, he used to play guitar and drums, which he can no longer do without pain. He used to play volleyball and coach basketball twice a month, which he can no longer do. He used to surf, race slot cars and go go-kart riding. He used to ride BMX bikes and mini bikes and played tennis twice a week. He can no longer engage in these pastimes, stating that he is too nervous to resume surfing.
17 The plaintiff states in his second affidavit that since swearing his first affidavit, he has developed an increasingly sharp pain from his left wrist to his left elbow and particularly if he places pressure on his left hand and that the stiffness in his left wrist has increased. He states that if his left wrist is in a stationary position for a period of time, his middle, ring and little fingers of his left hand become numb and his left hand becomes weak if he grabs something in it. About eight to ten times a day he feels an increase in pain in his left wrist, as a result of which he rotates his wrist and moves it around to reduce the pain. He wears a wrist strap on occasions. He was wearing a wrist strap on the second day of the hearing of the application before me but not on the first day. He demonstrated to me how his left wrist clicks.
18 The plaintiff stated that prior to the back injury the only treatment given to his left wrist was exercises which had been recommended to him by a physiotherapist.
19 Late last year the plaintiff stated that he suffered an injury from an angle grinder. He stated that, using it for the first time, he was not able to properly control it on account of his left wrist, that the blade ran up his left arm and that his arm had to be stitched.
20 He has a son, born in January 2012, and states that he suffers from pain and discomfort when he picks up his son.
21 He has been on a Disability Pension since earlier this year. He stated that he was eligible for the Pension on account of both the injury and the back injury.
22 The plaintiff stated that he used cannabis regularly as a pain reliever.
23 The plaintiff was generally quite vague in giving his evidence.
Medical and Like Evidence
Treaters
24 A report from Dandenong Hospital to the plaintiff’s solicitors dated 8 November 2010 indicates that an x-ray of the plaintiff’s left wrist on 10 April 2008 showed –
“… an undisplaced fracture of the ulnar styloid process and a minimally displaced impaction fracture of the distal radial surface.”
25 The report continues:
“CT scan of the wrist on 13 April 2008 confirmed the presence of both fractures and showed details of the impaction fracture of the radius which involved the radial styloid and the medial aspect of the articular surface of the radius.”
26 On 18 April 2008, Mr Harvey performed –
“… arthroscopy and internal fixation of the fractures using a metal plate and screws, a K wire and synthetic bone graft.”
27 On 16 July 2008, Mr Harvey issued a Certificate which, under the heading “Work Restrictions”, stated:
“May lift and do heavy work to limit of endurance.”
28 The report from Dandenong Hospital indicated that the plaintiff missed four appointments between 17 April 2008 and 16 June 2008.
29 Mr Harvey reviewed the plaintiff on 3 December 2008. In a report to the second defendant dated 5 December 2008, he stated that the plaintiff had an excellent range of motion in his left wrist, but that he was complaining of pain over the dorsal aspect of the wrist where there was a plate. He stated that x‑rays show that the fracture had healed. He recommended the removal of the plate which, as mentioned, was done on 13 January 2009. He stated that –
“… at surgery he was noted to have a full range of motion with 90 degrees of flexion and extension, full pronation and full supination.”
30 He has not seen the plaintiff since 13 January 2009 but states that his prognosis was good and that he had achieved a full range of motion in his wrist.
31 Mr Harvey referred the plaintiff to Resolve Hand Therapy Specialists. Clinical notes from there indicate that the plaintiff attended on eleven occasions between May 2008 and December 2008 and that generally he had not complied with recommendations made, particularly with respect to wearing a splint. An entry for 30 December 2008 states that, from a hand therapy point of view, the plaintiff was “fit for normal duties”.
32 Surprisingly, there are no reports from general practitioners, although the plaintiff stated that he had attended both the Stud Road Clinic in Dandenong and Narregate Clinic in Narre Warren.
33 I was provided with a Patient Health Summary from Stud Road Medical Centre which covers the period 15 October 2010 to 23 May 2011.
34 On 15 October 2010, the plaintiff complained that his wrist had been playing up for the past few months, and on 21 October 2010, that he had difficulty in moving his wrist. On 3 December 2010, he complained of continuing pain in his left wrist and that he was unable to do any lifting, and on 8 December 2010 of recurring pain.
35 On 16 May 2011, Dr Elvira Stow of the Narregate Clinic referred the plaintiff to Dr John Monagle, a pain management specialist, in respect of back, neck and left wrist injuries, and on 23 May 2011, to Mr Paul Rosenberg, plastic surgeon, with respect to “work-related serious wrist/hand injury” and stated that:
“He has ongoing problems with numbness, pain and functional impairment.”
36 The plaintiff stated that he did not attend upon Dr Monagle or Mr Rosenberg.
37 On 21 October 2010, 3 December 2010 and 8 December 2010, three different doctors from the Stud Road Clinic signed requests for an x-ray of the plaintiff’s left wrist, but again, it appears that the plaintiff did not have any x-rays taken.
38 The plaintiff stated that the last time he went to a doctor was about three months ago and that he had been trying to find a doctor, a strange comment due to his previous involvement with Stud Road Clinic and Narregate Clinic.
Medico-Legal Examinations
39 Mr Kevin King, orthopaedic surgeon, examined the plaintiff at the request of his solicitors in November 2011. In a report of 17 November 2011, he states:
“… he has continued to be disabled ever since the accident, over the last three and a half years, by persistent neck pain and stiffness, and particularly by pain, weakness and stiffness in the left wrist and hand. He has been unable to return to work in any of the old heavy, unskilled labouring jobs that he had done in the past.”
40 He also refers to:
… Persistent aching pain and stiffness in the neck, of moderate severity, with occasional quite severe flare-ups.”
41 He expresses the following opinion:
“He has been left with a stiff, painful, weak left wrist, consistent with the severity of the original injury with moderate limitation of all movements of the wrist. This wrist, several years later, is still painful and it is a reasonable assumption that secondary osteoarthritic changes of at least a mild degree have already developed and are likely to become worse with time (unfortunately up-to-date x-rays were not available to me). At the time of the removal of the plate it would appear that a small cutaneous sensory nerve was divided over the dorsum of the left wrist which is a chronic nuisance for him causing sensory loss over the back of the hand, but does not interfere with the actual function of the hand itself. This stiff, painful, weak left wrist represents a significant problem to a previously fit and active manual worker and will make it difficult for him to return to heavy manual work which does involve gripping, pushing, pulling and straining with the left hand. He has no special skills and does not give the impression of being re-trainable in clerical duties. … .
The injury to the neck would have resulted in some damage to cervical discs and associated ligamentous structure and he has been left with chronic impairment of neck function of mild to moderate severity in the form of stiffness and pain due to soft tissue injuries to the neck - equivalent on clinical grounds to 20% loss of function in the neck. His loss of function in the left upper limb due to the wrist injury, on normal clinical grounds, is a 25% loss of function in the limb overall.
… .”
42 His prognosis is that the left wrist will probably deteriorate over the next ten to twenty years.
43 Surprisingly, no reference is made to the back injury.
44 Mr Robert Marshall, consultant surgeon, examined the plaintiff for the second defendant on 4 May 2009. In a report of 11 May 2009, he states:
“… The appearance now in both radius and ulna are completely anatomical but there seems little doubt that he must have a small degree of post- traumatic osteoarthritis of the radial component of the wrist joint.
…
Mr Barrios has limitation of flexion extension movements of his wrist. …
…
Mr Barrios does have a small area of anaesthesia on the dorsum of his hand because of the division of one of the terminal sensory branches of the radial nerve, just above the wrist, but this is not a cause of any disability. He also complains of numbness on the dorsum of the forearm for which there is no possible anatomical explanation. I do not believe that the anaesthesia of the dorsum of the hand produces any measurable disability.
…
Mr Barrios does have a minor impairment because of post-traumatic osteoarthritis of the radio-carpal treatment of the wrist joint, with some limited movement of flexion and extension. This limitation of movement is likely to become permanent and should be regarded as stabilized.
…
Mr Barrios was clearly extremely preoccupied with the minutiae of his symptoms and regards himself as being gravely disabled. He said that he had been given no help at all by the insurance company to find work and he simply remains in limbo at present. I do not believe there is any physical reason why he should not be able to resume any reasonable employment.
… .”
45 Mr Damian Ireland, hand surgeon, examined the plaintiff at the request of the defendant’s solicitors on 5 September 2012. In a report of 12 September 2012, he stated:
“Current Complaints
Mr Barrios complains of stiffness at the left wrist and circumferential pain at the left wrist which he describes as episodic and provoked by cold temperatures and use of the hand. This occurs approximately five times a day and lasts for fifteen minutes. In addition he complains of shooting pains from the wrist to the elbow as well as shoulder pain which he claims radiates from the wrist. He complains of a ‘cracking’ sensation in the wrist with active movement and numbness on the dorsum of the hand. With regard to functional loss he states that he is not able to lift his baby but is unable to specify any specific loss of function.
…
On direct questioning with regard to present treatment, he states that he takes Panadol Forte one per day and Panadol regular one per day and smokes one gram of cannabis per day (approximately two cigarettes). … John is able to drive his own car without apparent difficulty. He attends to most of the normal household chores but states that he is not able to mow his lawn due to the left wrist symptoms.
…
He takes OxyContin approximately one tablet every three days for low back pain but has no routine doctors’ appointments. He was unable to elaborate the source of his prescription only OxyContin.
…
It was difficult to accurately determine the amount of active motion at the wrist as this varied each time it was examined with accompanying histrionics. …
Grip strength was measured using a Jamar dynamometer and recorded on the right successively at 50, 55 and 55 on the left at 0, 5 and 4 kg. The greater than 20% variation precludes the use of grip strength as an assessable impairment.
I took the liberty of ordering radiographs of the left wrist as none had been taken since his last surgical procedure to remove the internal fixation device. These radiographs revealed early traumatic arthritis at the left wrist radio carpal joint with mild malunion of an intra articular fracture affecting the distal radius. The distal radioulnar joint is intact.
…
The diagnosis is restricted motion at the left wrist due to traumatic arthritis following open reduction and internal fixation of an intra articular fracture involving the distal radius.
…
The prognosis for any further improvement is limited. The plaintiff has evidence of early post traumatic arthritis at the wrist and it is likely that this will slowly deteriorate. If the worker does not plan to undergo any further surgical treatment, then his condition could be classified as stabilised. I believe further treatment is appropriate which I will outline below.
…
In my opinion the worker presently is incapable of manual work due to his continuing left upper extremity symptoms. I believe he would be capable of many forms of appropriate light work that does not aggravate his left upper limb symptoms.
…
The worker should avoid manual work that requires lifting weights in excess of 10 kg or work that requires repetitious movement of the left wrist. He would be aided in this regard by the use of a wrist splint. There is a discrepancy between the severity of the subjective findings which indicates a non physical component to his symptom complex. These two components of his symptom complex need to be accurately determined before a definitive recommendation can be made regarding appropriate work.
…
As outlined above, it is my opinion that there is a significant non physical component to this worker’s symptom complex. A psychiatric opinion in this regard would be appropriate together with psychiatric treatment for this component. I believe the physical component could then be addressed by appropriate non surgical and possibly surgical treatment. The latter might include a wrist denervation procedure.”
The Back Injury
46 Clinical notes from the Stud Road Clinic for 23 November 2010 indicate that the plaintiff was complaining of chronic lower and upper back discomfort from which he had been suffering for fifteen years. CT scans were requested and performed. A report of 2 December 2010 states:
“CT SCAN OF CERVICAL SPINE
Multi-planar images were obtained.
At C6-C7, there is a relatively mild and broad based posterior disc protrusion, but not likely to be causing significant neural compromise.
At C5-C6, there is a minor posterior disc bulge and there are minor anterior osteophytes.
…
CT SCAN OF LUMBAR SPINE
At L4-L5, there is an annular disc bulge with ligamentum flavum thickening causing mild to moderate thecal indentation.
At L5-S1, there is a mild posterior disc bulge not causing significant neural compromise.
… .”
47 On 12 January 2011, Dr Suzette Meshreky referred the plaintiff to Mr Michael Melamed of the same address as the Stud Road Medical Centre. I was not informed of Mr Melamed’s area of expertise. In a letter, she states:
“Thank you for seeing John Barrios for an opinion and management. [He] needs to have assessment and treatment. [He] has severe cervical and lower lumbar pain.”
The plaintiff stated that he did not know who Michael Melamed was and that he did not see him.
48 Dr Meshreky noted that the plaintiff was taking two Celebrex capsules daily.
49 In a Certificate of Capacity of the same date, Dr Meshreky noted that the plaintiff was fit for modified duties for the next four-week period and that he should avoid heavy lifting greater than 10 kilograms, bending and twisting. His diagnosis was stated to be lower back pain and disc prolapse at L4-5. A Certificate for the one-month period from 15 February 2011 contained the same information.
50 As noted, on 16 May 2001, Dr Stow of the Narregate Clinic referred the plaintiff to a pain management specialist, not just for his left wrist but also for his back and neck injuries.
51 Answers to a questionnaire provided to the Department of Justice insurer by Melissa Napier, a physiotherapist, on 4 July 20011 stated that she was treating the plaintiff for an L4-L5 disc bulge which was causing lower back pain with right-sided radiating symptoms and that the plaintiff was working pre-injury hours on light duties.
52 The plaintiff was referred to Mr Craig Timms, neurosurgeon, by Dr Mark Overton of the Narregate Clinic. He examined the plaintiff on 26 October 2011 and ordered an MRI scan.
53 This scan was performed on 17 November 2011. A report of 18 November 2011 by Dr Paul Marks to Mr Timms on this MRI scan, stated, with respect to the cervical spine:
“Mild disc degeneration at the mid cervical spine with broad based disc bulges at C4/5, C5/6 and C6/7. There is no left sided neural compression.”
and for the lumbar Spine:
“shallow left paracentral disc protrusion at L5-S1 touching the left S1 nerve root.”
54 On 20 November 2011, Mr Timms wrote to Dr Overton as follows:
“I reviewed Mr Barrios today and he has had a recent MRI scan which has been very helpful and it shows a shallow disc protrusion on the left at L5-S1 and I think this is probably where his symptoms are coming from. It is a small disc protrusion but nonetheless, I suspect some inflammation around there would be contributing to his symptoms.
These small ones often do not require any surgical intervention but do benefit from prolonged courses of physio, hydrotherapy and massage. It may be that a CT-guided nerve block of cortisone would give him longer relief. I have given him a referral for this. He is not keen to have any injections, but I have given him the referral in case he changes his mind.
… .”
55 As appears, the back injury was quite substantial.
Medication
56 The evidence over what medication the plaintiff has been taking is far from satisfactory.
57 In his first affidavit, the plaintiff stated that he was taking about sixteen Panadol tablets over a week for the injury. In evidence-in-chief, he stated that he was taking OxyContin for the injury at least three or four times a week prior to suffering the back injury. There was no medical report before me to confirm this.
58 In his second affidavit, the plaintiff stated that he was taking no medication for the back injury. Mr Ireland notes that the plaintiff told him that he was taking approximately one OxyContin tablet every three days for his low-back pain, but that he was unable to advise on the source of his prescription-only OxyContin. He also mentioned to Mr Ireland that he was taking one Panadol Forte each day and one regular Panadol each day, as well as smoking one gram of cannabis daily.
59 In evidence-in-chief, the plaintiff stated that he was now taking, specifically for the injury:
“OxyContin prior to a week and a half ago and Panadeine Forte plus also Panadeine or Panadol, whichever one is cheapest at the time.”
60 The plaintiff stated that he could not recall when he last obtained a prescription for OxyContin.
61 He stated that he preferred not to take medication and that he felt that cannabis helped him more.
62 The plaintiff provided originals of seven prescriptions covering the period from 15 October 2010 to 28 May 2012. They were as follows:
Date Medication Clinic 15 October 2010 Mobic (no repeats) Stud Road Clinic 15 October 2010 Mobic (no repeats) Stud Road Clinic 21 October 2010 Celebrex Stud Road Clinic 20 September 2011 Panamax Narregate Clinic 27 March 2012 Fenac Narregate Clinic 27 March 2012 Fenac Narregate Clinic 28 May 2012 Panadol Osteo Dr Bavani Kirubaharan
Narre Warren South
63 The plaintiff stated that Dr Kirubaharan practiced at the Narregate Medical Centre. However, the address on the prescription, as indicated, showed that he practiced at 370 Pound Road, Narre Warren South, whereas the Narregate Clinic is located at 60 Victor Crescent, Narre Warren.
64 The plaintiff stated that Panamax gave him complete pain relief from the injury.
65 He stated that he had never used Fenac. When asked why, his answer was:
“I really couldn’t tell you.”
66 He also stated that he could not recall using Mobic.
Discussion
67 Considerable time was spent at the hearing upon the plaintiff’s Facebook entries. I found the evidence on this topic confusing and inconclusive. However, it is of concern that, after the first day of hearing while the plaintiff was still under cross-examination, some of which had focussed upon the plaintiff’s Facebook entry, alterations were made to his Facebook entry. Mr Montgomery, who appeared for the defendants, expressed concern that the plaintiff’s Facebook entries might be tinkered with overnight. The plaintiff stated that his fiancée had done this. This was unfortunate, given the concerns that were expressed. The plaintiff stated that no relevant alterations were made to his Facebook entry
68 The plaintiff had an entry on Facebook dated 6 December 2009 showing him driving his Range Rover through a stream. It had the caption “Its first river crossing fcn mad!!”. The plaintiff stated that the photograph was taken some years earlier and that he was not involved in that activity around 6 December 2009. I find this somewhat hard to accept.
69 In the end, however, I make no adverse findings against the plaintiff in respect of his Facebook entries.
70 As to the back injury, I note the comments of J Forrest J in Acirv Frosster Pty Ltd [2009] VSC 454 at paragraph 167:
“… This case, as I have noted, starkly raises a point which does not appear to have been considered in the past: the happening of an unrelated supervening event which, on one view, extinguishes the worker’s earning capacity and on any view would have caused him to cease working in the three year post-injury period.”
and at paragraph 170:
“I have reached the conclusion that a court should not, for the purpose of fixing a representative figure for ‘earning capacity’ under s 134AB(38)(f), take into account the supervening event of Mr Acir’s cirrhotic liver condition … .”
71 It is clear that for the purposes of this application, even though the back injury has consequences which might well be described as “marked” both with respect to pain and suffering and loss of earning capacity, I must disregard it. Likewise, I must disregard the plaintiff’s neck problems which Mr King regarded as being “of moderate severity”. It is strange that the plaintiff told Mr King of his neck injury but not his back injury.
72 On the material before me, it would appear that the plaintiff’s attendance on his general practitioners is somewhat sporadic. The failure of the plaintiff to attend appointments with Dr Monagle, Mr Rosenberg and Mr Melamed and to have x-rays taken at the end of 2010 suggests that the injury was not causing the plaintiff any great inconvenience or pain. Reports from Dandenong Hospital and from Mr Cunningham also confirm that the plaintiff was making little effort to assist himself.
73 Mr Harvey, at surgery on 13 January 2009, stated that the plaintiff had a full range of motion in his left wrist.
74 I accept on the basis of the medical reports before me that the plaintiff has some post-traumatic osteoarthritis of his left wrist, which will slowly deteriorate. I note that Mr Marshall referred to this as “a minor impairment”. I note the comment by Mr Ireland that there is present “a significant non-physical component” and the tests performed were inconsistent. Mr Marshall comments to similar effect.
75 As mentioned, the evidence with respect to medication being taken by the plaintiff is somewhat vague and far from satisfactory. The plaintiff stated that he can obtain complete pain relief from Panamax. He also stated that he preferred using cannabis to medication to obtain pain relief. Either scenario is not consistent with the suffering of a serious injury.
76 So far as cannabis use is concerned, the plaintiff stated in evidence-in-chief that he had used cannabis minimally since about six years prior to the accident. In cross-examination the next day, he stated that this was incorrect and that on a plea hearing in the Magistrates’ Court on 7 June 2010, he had instructed his counsel to submit to the Court that he was addicted to cannabis.
77 Given the plaintiff’s extensive criminal record, including dishonesty offences, and the contradictions in his evidence to which I have referred, I do have reservations as to the credibility of the plaintiff as a witness, taken with the reservations Messrs Marshall and Ireland had as to the histories given to them by the plaintiff.
78 The absence of medical reports from general practitioners who have treated the plaintiff is of concern. These would have assisted, of course, in assessing the extent of the plaintiff’s injury. They would also have assisted in determining what medication the plaintiff has been taking and particularly prior to the back injury.
79 A Job Capacity Assessment Report dated 15 April 2011 refers to reports having been obtained from Dr Suzette Meshreky of the Stud Road Clinic, Mr Brett Longhurst, an exercise physiologist, and Dr Melissa Slayo, a clinical neuropsychologist. None of these reports were produced at the hearing.
80 Against this background, it is, in my view, appropriate to draw an adverse inference against the plaintiff in respect of the non-provision of reports from general practitioners whom the plaintiff saw at Stud Road Clinic, Narregate Clinic and Dr Bavani Kirubaharan, no explanation being given for their absence. Mr Jewell, Senior Counsel, who with Mr Harper appeared for the plaintiff, opposed my drawing such an inference.
81 This Jones v Dunkel (1959) 101 CLR 298 inference is conveniently summarised in O‘Donnell v Reichard [1975] VR 916, 929, where Newton and Norris JJ stated:
“… It is sufficient to say that in our opinion for the purposes of the present case the law may be stated to be that where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person's evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person's evidence would not have helped that party's case; if the jury draw that inference, then they may properly take it into account against the party in question for two purposes, namely: (a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken.”
82 I infer that the evidence which would have been given by the three general practitioners would not have assisted the plaintiff’s case both with respect to the regularity or otherwise of his attendance upon them, their opinion on the extent of the injury and the back injury, and medication being taken by the plaintiff, particularly with respect to the period prior to the back injury being suffered.
83 I accept that the plaintiff may have some ongoing pain in his left wrist, although given the comments of Mr Marshall and Mr Ireland and my view upon his credit, his symptoms may be exaggerated. This, in turn, affects medical opinions based upon symptoms indicated by the plaintiff. I accept, however, that the plaintiff has some post-traumatic osteoarthritis of his left wrist which will slowly deteriorate and which is not dependent upon my views as to the credibility of the plaintiff. I also accept that there has been some limitation in the plaintiff’s recreational pursuits although the extent of the limitation may well be exaggerated.
84 The plaintiff’s age is, to some extent, a relevant factor which I take into account. I note the comment by the Court in Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181 at paragraph 43 by Beach AJA:
“… The appellant is a young man with low back pathology which has at least been aggravated by the compensable injury. He faces, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life. When judging the pain and suffering consequences for the appellant by comparison with other cases, we consider that it is relevant to look at the likely period for which those consequences will be experienced. All things being equal, impairment consequences which a man (or woman) will have to put up with for 40 years might well be judged more serious than the same consequences which a man (or woman) may have to put up with for a much shorter period of time.”
85 In the end however, I am not satisfied that the plaintiff’s pain and suffering consequence of the injury can be “described as being more than significant or marked, and as being at least very considerable”.
86 So far as loss of earning capacity is concerned, I am required to consider this issue on the basis that the back injury had not occurred. The work undertaken by the plaintiff prior to suffering the back injury is therefore particularly relevant. The neck injury is also irrelevant.
87 The granting of a Disability Pension to the plaintiff earlier this year is, in my view, inconclusive. The plaintiff stated that he was granted this Pension on the basis of both the injury and the back injury.
88 Mr Jewell submitted that the plaintiff was totally incapacitated for work. He adopted “an all or nothing” approach.
89 In Perth, the plaintiff was able to work as a truck driver for a few months. It would appear that he coped satisfactorily with such work since he, in addition, worked for Tip Top Bakeries on a Saturday.
90 The plaintiff was able to work as a scaffolder for approximately one-and-a-half or two months upon his return from Perth in May 2010. There was no evidence before me that he was unable to cope with this work as a result of his injury.
91 I note the opinion of Mr Ireland that while the plaintiff is incapable of manual work due to his wrist injury, he would be capable of many forms of appropriate light work and that he was able to drive his own car without any problem. The plaintiff’s evidence that he could only drive with his left wrist resting on his hip would appear to be an exaggeration.
92 Mr King commented that the plaintiff is unable to return to heavy, unskilled labouring jobs but I note that when the back injury was sustained, he was shovelling mulch. I also note that prior to the accident, the plaintiff had worked as a courier.
93 There was no evidence before me of endeavours by the plaintiff to obtain employment after sustaining the back injury. The plaintiff, in my view, does have the capacity to engage in light driving duties such as a courier or bread deliverer as he had done in Perth, or as a scaffolder.
94 The plaintiff gave evidence that his salary while working as a driver in Perth was approximately equal to what he was earning with the first defendant prior to the accident.
95 It follows that, in all the circumstances, the loss of earning capacity consequence, in my view, cannot be “described as being more than significant or marked, and as being at least very considerable”.
Conclusion
96 The application for leave to issue proceedings fails.
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